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Collopy v. Colson Construction12/2/2003
personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of the injury, shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury or, in the case of an action for contribution or indemnity, accrual of the cause of action, nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction. Date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or the owner's representative can occupy or use the improvement for the intended purpose.
Minn. Stat. §á541.051, subd. 1(a) (2002) (emphasis added). But" his section shall not apply to actions based on breach of the statutory warranties set forth in section 327A.02, or to actions based on breach of an express written warranty, provided such actions shall be brought within two years of the discovery of the breach." Id., subd. 4 (emphasis added). While we agree discovery of the breach in this case occurred at a date later than discovery of the injury , we conclude the distinction is irrelevant in this case.
Even if discovery of the breach did not occur until Fiedler"discovered or should have discovered that Colson Construction was unable or unwilling to maintain and provide her a new home free from defects," as Fiedler would have us conclude, she has failed to present any evidence that the discovery occurred within two years of commencing this lawsuit. The lawsuit was commenced on August 10, 2000, when Colson Construction was served with the summons and complaint. See Minn. R. Civ. P. 3.01(a) (stating civil action is commenced"when the summons is served upon that defendant"). Fiedler must present sufficiently probative evidence to permit reasonable persons to draw different conclusions whether she knew or should have known Colson Construction breached its warranties before August 10, 1998. Mere averments that she did not discover the breach until late August 1998 are not sufficient to defeat summary judgment.
According to Collopy's deposition, at some point in 1998, Louis Colson, the president of Colson Construction, stopped responding to Fiedler and Collopy, refusing to return their phone calls. Working backwards from dates Collopy did know, the latest date Fiedler and Collopy knew they were"on their own" was July 1998. Furthermore, according to Fiedler's deposition, she had no communication with Colson Construction in 1998. Thus, the latest Fiedler knew or should have known Colson Construction breached its warranties is July 1998. We conclude Fiedler failed to file her claims in a timely manner under Minn. Stat. §á541.051 and therefore summary judgment for Colson Construction was proper as a matter of law.
Fiedler also argues Colson Construction should be estopped from asserting a statute of limitations defense for any of her claims. Estoppel is an equitable doctrine that is intended to prevent a contractor from"taking unconscionable advantage of his own wrong by asserting his strict legal rights." Mut. Serv. Life Ins. Co. v. Galaxy Builders, Inc., 435 N.W.2d 136, 140 (Minn. App. 1989) (citation and quotation omitted), review denied (Minn. April 19, 1989). A party seeking to invoke the doctrine of estoppel has the burden of proving three elements: (1) that promises were made; (2) that it reasonably relied upon the promises; and, (3) that
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